CASE COMMENT

CITATION :-                                               W.P.(C) No. 1011/2022Diary No. 36593/2022

DATE OF JUDGMENT:-                                                                    17 October, 2023

COURT:-                                                                         SUPREME COURT OF INDIA

PETITIONERS:-      SUPRIYO CHAKRABORTY, ABHAY DANG, PARTH PHIROZE                                         MEHROTRA, UDAY RAJ ANAND

RESPONDENT:-                                                                                     UNION OF INDIA

BENCH:-       D.Y.CHNDRACHUD CJI, S.K..KAUL J,S.R.BHAT J,HIMA KOHLI J,   P.S.NARSIMHA  J

Facts

The cases were filed by the LGBT Community for recognition of same-sex marriage and the establishment of families for sexual and gender minorities based on protections from discrimination, the right to equality, dignity, personal liberty, privacy, personal autonomy, and freedom of conscience and expression in India.[1]

                      The respondent, the Union Government under the Bharatiya Janata Party leadership and its statutory body National Commission for Protection of Child Rights, opposed the  extension of the right to marry and establish a family to sexual and gender minority individuals in India, due to societal, cultural and religious history, consistent legislative policy, popular morality and majoritarian views.[2]

The State Governments of Assam, Gujarat and Madhya Pradesh led by the Bharatiya Janata Party, the State Government of Rajasthan led by the Indian National Congress, and the State Government of Andhra Pradesh led by the YSR Congress Party, intervened to oppose the right.[3]

As the opponents raised concerns over the well-being of children in same-sex families, an independent professional association, the Indian Psychiatric Society, supported marriage and adoption rights for sexual and gender minority individuals based on scientific evidence[4]. The opponents’ claim that HIV is more common among gay and bisexual men is contrary to Ministry of Health and Family Welfare data, which shows that opposite-sex acts caused 83.1 percent of HIV transmission in India and same-sex acts with a 2.5 per cent transmission rate was a penultimate cause.

A five-judge Constitution Bench, consisting of Chief Justice of India D.Y. Chandrachud, Justice S.K. Kaul, Justice S.R Bhat, Justice Hima Kohli and Justice P.S. Narasimha, heard 20 connected cases brought by 52 petitioners.[5]

Issue Raised

1. Do members of the LGBTQIA+ community have a right to marriage?

2. If members of the LGBTQIA+ community have a right to marry, can the SC make a declaration to this effect?

3. Does the non-inclusion of LGBTQIA+ marriages under the Special Marriage Act, 1954 amount to discrimination under Article 14?

Contention

By Petitioners

  1. They contended that it is a violation of fundamental rights when couples from sexual and gender minority communities are excluded from marriage laws, especially the Special Marriage Act and Foreign Marriage Act. And they have approached the Court to safeguard their fundamental rights, in accordance with Article 32 of the Constitution of India.
  2. Article 14 of the Constitution of India ensures the right to equality, they added the Supreme Court’s pronouncement that any law that fails to protect an individual’s self-determination of sexual orientation and gender identity is irrational and arbitrary.
  3. According to the Supreme Court’s establishment in  NLSA v. UOI, Puttaswamy v. UOI, and Navtej Singh Johar v. UOI for sexual and gender minority individuals, the petitioners sought to extend the right to marry and establish a family to these communities based on multiple constitutional articles.
  4. They also added the decision from High Courts, such as the Madras High Court’s ruling in Arun Kumar v. Inspector General of Registration, which declared that the refusal to register the marriage between a Hindu cisgender man and a Hindu transgender woman violated fundamental rights as provided under various articles of the Indian Constitution.

By Respondent

  1. They contended that the idea of marriage is inherently a union between two individuals of opposite genders, that is deeply entrenched in our social, cultural and legal fabric. This definition should not be changed by any judicial interpretation, with any alterations which are reserved for competent legislative bodies.
  1. The nature of marriages can vary according to their personal laws. According to Hindu law, it is a sacred sacrament that puts emphasis on mutual duties between a man and a woman. In Islam, it is a contract which is restricted to natural persons. Requesting the honourable court not to alter this long-standing legislative policy deeply rooted in religious and social norms.
  2. In Navtej Singh Johar v. Union of India[6] The Honorable Supreme Court has stated that while individuals have the right to a union under Article 21 of the Constitution of India, it does not necessarily mean marriage between those same-sex couples. And  despite the fact that section 377 of the Indian Penal Code has been decriminalized, the petitioners cannot assert a fundamental right to have same-sex marriage to be recognised under the country’s laws.
  3. As recognized by personal and codified laws of India such as the Hindu Marriage Act, 1955, Christian Marriage Act, 1872, and  other laws, marriage is the union of a man and a woman i.e. of opposite gender. Apart from mere recognition of marriage, this institution signifies social and legal implications. Family cases which are full of rights and duties are totally different from mere recognition of same-sex marriage.
  4. Registration of marriage between same-sex individuals shall not be in accordance with the personal or codified laws or we can say this will violate the existing personal and codified laws, including the regulations pertaining to prohibition of relationships, conditions of marriage, ceremonial and ritual requirements and more.
  5. The definition of ‘marriage’ in various statutes, personal laws, and penal laws, which use specific terms like “husband” and “wife,” “male” and “female,” “bride” and “bridegroom,” among others. This clearly shows the intention of legislative policy in India, and it is not within the court’s purview to alter this policy.

Rationale

With a 3:2 majority, the  Honourable Supreme Court arrived at the verdict pertaining to the legal recognition of same-sex marriages, in which three judges refused to grant legal recognition to marriage between same-sex individuals. They said that the right to marry is not a fundamental right, and it is under the purview of Parliament to make decisions regarding the legalization of marriage between same-sex individuals. The majority of judges further added that Section 4(c) of the Special Marriage Act, which is a key piece of legislation in question, does not violate the fundamental rights of same-sex couples. Their rationale behind this belief is that the same-sex couples can opt for different legal alternatives , such as live-in relationships and civil partnerships.

And the minority judges i.e. Justices D.Y. Chandrachud and Hima Kohli, held a contrary view. They asserted that the right to marry should indeed be recognised as a fundamental right. They also argued that Section 4(c) of the Special Marriage Act does not violate the fundamental rights of same-sex individuals. According to them the right to marry is an integral part of an individual’s right to life and personal liberty. They said that the same-sex couples or homosexual couples should also enjoy the same and all marriage  rights as their heterosexual counterparts. The majority decision puts the legislature responsible for taking action in this regard but the dissenting judges argued for instant recognition of the fundamental right to marry for all couples, irrespective of gender or sexual orientation.

Defects of law

The majority’s decision of not to grant legal recognition to same-sex marriage is very disappointing and this reasoning is problematic in various ways.

First, the Constitution of India does not support the majority’s assertion that the right to marry is not a fundamental right,

Second, same-sex couples have other options open such as live-in relationships and civil partnerships is somewhat misleading and confusing as live-in relationships and civil partnerships do not provide same-sex couples with the same rights and protection as marriage between heterosexual individuals provides.

On the other side, the contrary perception of Justices Chandrachud and Kohli is a strong and we’ll reason arguments in favour of homosexual marriage.

They asserted that the right to marry is a fundamental right and that the same-sex couples should enjoy the same rights and duties as heterosexual couples.

In the end, we can say the verdict given in Supriyo v. Union of India is a mixed pack. For the time being majority judgement has refused to grant the recognition but in the near future, it might be possible for equality and recognition to be given to the LGBTQ+ community in India.

Inference

The Honorable Supreme Court’s verdict i.e. refusal to grant recognition to the LGBTQ+ community in India and entrusting the matter in the hands of Parliament, in the case of Supriyo v. Union of India has provided a huge disappointment to the LGBTQ+ community in India.

But apart from this, there is also a hope, emerging from the opinion of Justices Chandrachud and Kohli. Their dissenting opinion says “ right to marry is indeed a fundamental right and that Section 4(c) of the Special Marriage Act violates this right of same-sex couples ‘, providing a positive outlook. Their perspective provides a possibility that, in the near future, the Honorable Supreme Court may reconsider the verdict and take a step towards legalising the homosexual marriages in India.

The dissenting voice of Justices Chandrachud and Kohli opined that the fight for the right to equality of same-sex couples is still going on, and in the near future, this email right may be provided to same-sex individuals.

Name- Anjali Yadav

College- D. D. U. University Gorakhpur Uttar Pradesh


[1]Supriyo v. Union of India and other connected cases. Other connected cases include Nikesh P.P. v. Union of India, Abhijit Iyer Mitra v. Union of India, Vaibhav Jai v. Union of India, Dr Kavita Arora v. Union of India, Udit Sood v. Union of India, Joydeep Sengupta v. Union of India, Mellissa Ferrier v. Union of India, Nibedita Dutta v. Union of India, Zainab J. Patel v. Union of India, Parth Phiroze Mehrotra v. Union of India, Sameer Samudra v. Union of India, Aditi Anand v. Union of India, Utkarsh Saxena v. Union of India, Nitin Karan v. Union of India, Kajal v. Union of India, Amburi Roy v. Union of India, Akkai Padmashali v. Union of India, Rituparna Borah v. Union of India and Harish Iyer v. Union of India.

[2] Mahajan, Shruti (12 March 2023). “India Government Opposes Same-Sex Marriage in Landmark Hearing”. Bloomberg News. Archived from the original on 2023-03-12.

Respondent: Union of India (12 March 2023)

Intervenor: National Commission for Protection of Child Rights (13 April 2023)

[3] Kakkar, Shruti (17 April 2023). “Pleas seeking legal validation of same-sex marriage reflect ‘urban elitist’ views: Centre to SC”. The New Indian Express. Archived from the original on 18 October 2023.

ANI (10 May 2023). “Assam, Andhra and Rajasthan opposed legalising same-sex marriage: Centre tells SC”. The Print. Archived from the original on 10 May 2023.

[4]  Indian Psychiatric Society (3 April 2023), Position Statement of Indian Psychiatric Society regarding LGBTQA, IPS/HGS/22-24/1007 (LGBTQA), Gurgaon, India: Indian Psychiatric Society, archived from the original on 11 April 2023

“Psychiatrists back LGBTQA marriage & adoption rights”. The Times of India. 10 April 2023. ISSN 0971-8257. Archived from the original on 10 April 2023.

Dutta, Alisha (9 April 2023). “No scientific data to oppose same-sex marriage, says Indian Psychiatric Society”. The Hindu. ISSN 0971-751X. Archived from the original on 10 April 2023.

[5] Supreme Court Order: W.P.(C) No. 1011/2022 (13 Mar 2023)

[6] (2018) 10 SCC 1,

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